Lethal injection is the humane form of capital punishment. As a culture, as Americans, we’ve moved past the nightmare methods of the past. Gone are the brutal neck-snappings of hangings, the grotesque sizzling of bodies in electric chairs, the barbaric heart-ripping bullets from firing squads. The lethal injection turns the high theatrics of an execution into a routine medical procedure, an elimination antiseptic and efficient, humanity scrubbed of a scourge with clean consciences all around. It’s a painless process. Clayton Lockett spent the promised easy process of his death writhing on a gurney in agony, groaning, screaming, pleading for help, trying to escape, burning alive from the inside, for forty-five minutes before his heart mercifully seized. Doyle Lee Hamm, suffering from cancer, was strapped down while doctors jabbed needles into his legs and groin in an attempt to find a vein healthy enough to fit an IV line through which prison officials could send the drugs needed to numb his pain receptors, freeze his body, and stop his heart. He bled profusely and plead for death, was saved only by the midnight deadline for the completion of his execution and his own body’s illness and decay. He still experiences – feels vividly – the dread he felt at the prospect of his own imminent execution, and the pain that made him wish it would come sooner, every time he lies on his back. “Cruel and unusual punishment” is forbidden by the Eighth Amendment to the United States Constitution, the document that supposedly provides the basis for every law and legal decision in the country. The tortures of Lockett and Hamm raise the question of how can a society that has among its founding documents a prohibition against cruel punishment reconcile itself to such gruesome scenes in its death chambers. More urgently: why would it ever want to?

The answer to both questions relies on the uncertainty in the words “cruel and unusual”. There is no objective standard for cruelty, no level of agony that is for everyone too far when administering punishment. This leaves the meaning of the clause open to interpretation both constitutionally – what is allowed as law by the courts – and morally – what individuals think of as appropriate means of punishment. Defenders of the death penalty often locate its legal justification in its original meaning in the Bill of Rights. Executions were commonplace in late 18th-century America, in law if not in practice, often for lesser crimes than murder. They did not cease after the enactment of the 8th Amendment-containing Constitution, indicating the drafters and signers of the law did not intend for it to forbid capital punishment – for the death penalty to be considered “cruel and unusual”. This argument is bolstered by the presence of language in the Bill of Rights that seems to allude to the constitutional legality of the death penalty. Namely, in the Fifth Amendment, which reads in part “no person will be deprived of life, liberty, or property without due process of law”; the “without” seems to imply that, if the due process of law is afforded, the state can deprive a person of her life. The case that the collective intent of the founders in drafting the constitution was pro-capital punishment – intended the constitution not forbid state laws that included it as a sentence – seems unimpeachable. To further their point, death penalty supporters note that the methods of execution in 18th century America were often quite brutal – poorly prepared hangings and so on – and the executions carried out in the modern day are less painful, less cruel, than what is theoretically permissible by the constitution.

But courts are not bound the original meaning of the 8th Amendment when deciding how it will be understood today, and indeed there are good reasons to apply different, updated interpretive principles to its text. The country has made moral advancements since the late 18th century, notably doing away with chattel slavery as its primary mode of agriculture and allowing women and people of color the vote. Both of these changes deviated from the original intent of the drafters of the constitution at its signing; slavery was explicitly included as permissible in the document. A principled originalist might here make an objection of type: the examples just cited were new laws rather than updated interpretations of previously written ones. But the understood meanings of amendments have shifted as well. At the time the constitution was ratified, no one understood the First Amendment to categorically protect free speech rights, as exemplified by the Alien and Sedition Acts, a suite of laws passed in 1798 – with yea votes by many of the Founding Fathers – that made it a crime to protest the government, among other things. Yet the legal understanding of the Amendment changed, and no serious legal scholar would defend the constitutionality of a law punishing political protest today. The meaning of the 8th Amendment itself has updated similarly throughout the centuries. George Washington had a man hanged for introducing fake money to the economy, and even the most bloodthirsty modern judge would not sign off on an execution order for a counterfeiter. Punishments not in use at the time of the ratification of the Bill of Rights, such as extended stretches of solitary confinement for juveniles, have been in recent history examined and deemed unconstitutional. So it is clear laws, the 8th Amendment among them, can be read using updated interpretive principles, ones that bring to bear on them modern socio-political and moral understandings.

If we examine the death penalty with a twenty-first century view of what constitutes “cruel and unusual punishment”, the case for its unconstitutionality becomes stark. Start with the clear brutality of the state murdering an innocent person. While there are no confirmed cases of a post-execution exonerations – case files tend to close after the convicted perpetrator dies – 154 people have been proven innocent by DNA evidence since the reintroduction of the death penalty in the 1970s. Over 1400 people have been executed in that time. This means out of every eleven people put on death row, one has been exonerated. The probability that the 154 people shown conclusively to have not committed the crime for which they spent years awaiting their execution were the only innocent ones – that no truthfully innocent convicts were killed by the state – is astronomically small (Stevenson). It’s almost certain the state has murdered an innocent person. By the very logic the state uses to condemn humans to death – the heinousness of their actions, almost always resulting in the malicious death of innocent people – the death penalty, incorrectly applied, is unspeakably cruel. Incorrect verdicts are not purely the function of a malconceived capital punishment scheme, or of the practice’s overapplication. They are inherent to the administration of justice in a society. No system will ever produce perfect results – guilty people will be exonerated at trial, innocent people will be convicted – as a result of the fallibility of human reasoning. Capital punishment exacerbates this flaw with its severity and its irreversibility. No reparations can be made to the dead.

But even if our system of determining guilt and innocence was perfect, the death penalty would remain cruel in the extreme. Lethal injection is considered the least painful, cleanest, most humane way to execute – a medical procedure. It has created grisly, horrific scenes – the torture of Clayton Lockett, of Doyle Lee Hamm, numerous other deaths of unspeakable torment. These are “botched executions”. But to call them that neglects a key point: they often succeed. They do what they’re intended to do, which is kill a person. The barbarity of the enterprise simply rises to the surface when the sodium thiopental or the paralytic fails and we’re forced to confront how potassium chloride eats the body from the inside, burns it up and stops the heart. What is “botched” is the theater. The dramatics of the last meal, the long march, the last words, the justified rage of the warden, the desperate protests of the bleeding-hearts, the clinical precision of the doctor, the slow painless-seeming snuffing of a human life, so much better than the convict deserved for what he did; all an elaborate stage show with one grotesquely warped message: justice is served. The writhing, tortured dying man had the gall to ruin the play by exposing the act of cruelty at its heart. This black core does not change when an execution goes off without a hitch. It is simply better concealed – better acted. Brutality is inherent to the enterprise, no matter if the death is presented in the guise of medicine, serving the cause of justice.

At least that’s one way of looking at it. There are people who believe the death penalty is just, the correct punishment for heinous crimes. Others are strict abolitionists who think it is always evil, forever wrong. Whether you think it should be legal nationally circles back towards your reading of the 8th Amendment – what you consider “cruel and unusual punishment”. The meaning taken by any individual depends on the interpretive principles they apply: whether they prefer original meanings instead of modern understandings, their individual philosophy, and so on. It is so obvious to not need stating that people can reach meanings both favorable to and opposed to the legality of the death penalty considered on 8th Amendment grounds. What is interesting is the remarkable consistency of one entity when faced with this analysis. The Supreme Court has, save for a very brief period, used the interpretation that has held the death penalty is not cruel and unusual, that it is permissible. Figuring out why this has held true reveals something fundamental about the law and how it is interpreted – to what end and to whose benefit.

Every case that goes before the Supreme Court has winners and losers. When the death penalty is preserved, who is hurt? The answer is obvious: the people set to be executed. And these consistently defeated are of a type. Death row inmates are not a randomly selected sample of the population. They’re disproportionately likely to be black and poor compared to not only the general population, but also to the population of convicted murderers. The most likely convicted murderer to be sentenced to die is a black man who murders a white person – there are more than fourteen times as many black people on death row for murdering white people than white people on death row for murdering black people. This is not a new phenomenon. The Supreme Court’s decision that temporarily suspended the legality of capital punishment in the United States, Furman vs. Georgia, cited the racial disparity in death sentences as part of the reason the death penalty as a whole was a cruel and unusual punishment. This, when combined with the capriciousness of the sentence – one justice compared being sentenced to death to being struck by lightning – put capital punishment laws in violation of the 8th amendment. Neither the racial difference in the sentence nor the randomness of its occurrence were coincidental.

Michelle Alexander’s The New Jim Crow analyzes the system of mass incarceration in the United States and comes to the conclusion that it is essentially a recreation of the racial caste system that existed under slavery and then again under Jim Crow. The work persuasively lays out the case for how the systematic incarceration of young black men essentially marks them as a permanent underclass in American society. Her emphasis is on the war on drugs, but Alexander’s Jim Crow metaphor can be extended to capital punishment. In the new Jim Crow, the death penalty takes the place of lynching. Once, the legal system functioned as a method of guilt-avoidance for white people who committed hate crimes – think Emmett Till’s killers, so obviously culpable, walking free and then jubilantly confessing their guilt and their pride to whomever would listen. But this was uncouth, dated, a hick-style murder committed by backwards lost-causers a century after it fell out of style. The savvier racists – most of the country – understood that the threat of lynching could be moved to the legal system and justified within it. Thus the spike of executions in the 1900s as Jim Crow asserted itself, to rates that remained high into the 1960s. After the lull in the 1970s following Furman, which was reversed after states presented plans to address the issues raised by the decisions in the case, Reagan’s war-on-drugs tough-on-crime rhetoric prompted another increase. In 1989, five young men, four black and one of Latino descent, were convicted of raping a jogger in Central Park. Donald Trump took out a full-page ad in the New York Times calling for their execution. The five were exonerated in 2003. During the 2016 campaign, Trump repeatedly insisted upon their guilt and refused to retract his call for the death penalty. The associations are clarion: men of color are falsely accused of a crime, and an angry community decides to administer their grotesque pantomime of justice via a lynching. Donald Trump, a man whose main talent is reflecting perfectly the petty rages and desires of the embittered and embattled white middle-aged majority, had an inchoate understanding that the death penalty was the means by which a lynching would be achieved in the late 1980s. Its function could not be clearer. So why was the death penalty allowed to persist? The answer reflects a fundamental trait of the law: its inherent ambiguity – the multiple meanings that can be read into any statute – means any legal decision is a fight between two sides supporting opposing interpretations. And these fights are not conducted between foes of even strength; often, one position comes in with all the advantages afforded by privilege and societal power. That side sees its interpretation prevail the overwhelming majority of the time. Thus, the law is a wholly ineffective means of changing the status quo: if the dominant group in society nearly always gets its way, and the status quo is how they like things, then nothing will change. If this country’s white majority wants “cruel and unusual” to be read to exclude the torture that is the death penalty in order to preserve a tool of the violent enforcement of their hegemony, then that is how the 8th amendment will be understood.

But there seems to be a flaw in this conclusion. Sometimes, the legal system rules against the powerful. The Furman case is an example: if the system was really biased in favor of the interests – cops, district attorneys’ offices, a majority of the voting public, white people – with more clout in American society, the Supreme Court would have ruled in favor of the death penalty. This seeming redemptive correction misses critical nuance, though, that can be found in the ambiguity in the heart of the law. There’s no limit to the number of challenges you can raise to a decision. Even if one interpretation falters, there is another that can be swiftly elevated to take its place. Then, the position of the minority needs to defend itself, perhaps this time with different attorneys, or different judges, with slightly different arguments. Furman was reversed after states presented a plan to use “aggravating factors”, things that made a crime theoretically more heinous, as the basis for death sentences. This system changed nothing about the racial dynamics or the capriciousness of the death penalty. It remains legal. Once a policy favored by the powerful wins in court, it has a way of sticking around. Any loss is merely a temporary setback, forcing the interests behind it to stall while a new legal strategy is cooked up. Any victory is immediately reinforced by implementation in society, giving the judicial decision the force of real life. Life without the death penalty was never given a real chance in American society. Life with unlimited political spending came into being promptly after Citizens United and it’s difficult to envision the world we would return to after a repeal.

The only way to break this cycle is to gain power. Political power in American life comes in varied forms, but some are more achievable than others for the currently dispossessed. It is unlikely that movements seeking change are going to accumulate the near-unfathomable wealth possessed by their foes, and changing the status quo means fighting against privileges. The attainable form of power is popular support. Take the Supreme Court decision in Hodges. It came soon after nationwide support for marriage equality eclipsed fifty percent. A similar shift in public opinion might be necessary to end the death penalty nationally. The multiple understandings possible for any law reinforce the existing order and reward powerful groups, who are better equipped to fight on the terrain of interpretation. Making any changes to the long-existing understanding of “cruel and unusual punishment” that excludes execution is going to be an uphill climb. But if a majority of Americans come to realize the barbarism of capital punishment, then change, however improbable, might be possible. And a chance of any size to end state murder by torture is worth taking.